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Employers do not need to do pre-employment immigration checks on British or EU recruits

Employment laws generate a lot of comment. Hardly a day goes by without the media reporting scare stories about the employment rights of UK employees, which are depicted as being anti competitive, unduly restrictive and in many cases, overly generous.

Each month, we are exposing some of the most common employment law myths and explaining the reality behind them. We are not pretending that employment law is easy – it isn’t, but generally it should not be difficult to get the basics right.

This month we look at the steps employers have to take to prevent illegal working.

Myth

Employers do not need to do pre-employment immigration checks on British or EU recruits.

Busted

All employers have a duty to prevent illegal working and are required to undertake pre-employment immigration checks on all staff they wish to employ to ensure that they have the right to work in the UK.

If you employ someone who does not have the right to work in the UK, you are liable to pay a fine of up to £20,000 per illegal worker. However, if you have undertaken appropriate pre-employment checks you should be able to establish what is known as a “statutory excuse” and avoid paying a fine. However, if you “knowingly” employ someone who does not have the right to work in the UK, this would be a criminal offence and could ultimately result in a jail sentence.

Certain individuals have the right to work in the UK. They include, for example, British citizens, nationals of countries in the European Economic Area, and those with indefinite leave to remain in the UK. The population of the UK is ethnically diverse and it is impossible to tell who has the right to work in the UK without first checking the relevant documents.

Therefore, the only way to be sure that you have properly carried out your checks, and to be protected from the risk of a civil penalty, is to undertake checks on all staff irrespective of where they have come from. You must not assume that someone is British or has the right to work in the UK simply because they have an English sounding name or British accent, nor should you assume that someone does not have the right to work because they have a “foreign” name or accent.

If you only carry out checks on people who you believe are not British citizens, for example, on the basis of their colour, or ethnic or national origins, you are likely be accused of discrimination. Job applicants can bring discrimination claims in an Employment Tribunal against prospective employers, or employment agencies. If successful, the Tribunal will normally order the payment of compensation, for which there is no upper limit.

Before a candidate starts working for you, you must ask him to provide you with certain original documents to establish that he can accept the work on offer. You cannot leave this until the first day they turn up for work.

The Home Office provides advice about what documents you can accept and how check that they are valid. You must satisfy yourself that the individual is the person named in them and check any photographs or dates of birth given. You must take copies of the documents and retain these on file.

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